Online privacy

Privacy issues arise almost every day. They have become more common with the growth and use of technology in our everyday life. Even sharing the most basic information about yourself online, like your name and birth date, can put your privacy at risk. In addition, posting or distributing illicit photos of others, even as just a joke, can be a very serious crime in Australia.

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Unauthorised use of your photo/video

An unauthorised use of your image happens when someone takes a photo or video of you and shares it without your permission. In Australia, there is no general right to privacy. This means there is no law which prevents an image of you being used without your permission (except in particular circumstances set out below).

However, there are steps you may be able to take if you think images of you are being used online or elsewhere without your permission. If the image or video contains explicit or private conduct of you, the law may be of more assistance. Please get free legal advice if this has happened to you.

There are no laws preventing an individual taking your photo in a public place and posting it online.

But, if someone has taken a photo of you while on your property, you may be able to take legal action against them for trespass to prevent the photos from being used or published.

What to do if you come across a picture of yourself being used without your permission online

There are no specific laws within Australia preventing someone taking your photo or video in a public place and then posting it online (unless the photo or video shows you doing something private – see below).

Steps to take

Ask the person who is distributing your photo to take it down. For example, if you find a photo of yourself on a social networking site such as Facebook, you can ask the person who posted the picture to remove it.

You can write directly to the social networking site or network administrator asking them to remove the post, image or video. See below for the links to some of the social networking sites complaint sections:

What to do if you come across a picture of yourself being used for advertising purposes

The Australian Consumer Law prevents companies and businesses from misleading and deceiving consumers. This means that a company cannot publish an image or video of you promoting something without your permission. If someone wants your permission to publish your image for this purpose, you will usually be asked to sign a waiver.

Steps to take

Ask the person or company who is using your photo for commercial purposes to remove it. For example, if you see yourself in an image or video advert of promoting a business or a product and you did not give permission, you can contact the company or advertising agency and ask them to remove it.

What to do if someone has taken a photo/video of you doing something private

In NSW, it is against the law to take a photo or video of a person engaged in a private act (whether or not covered by underwear) including a person’s private parts without their permission. This may include taking photos or video of others engaging in sexual activities, in a state of undress, or using a bathroom, shower or changing room. It is also illegal to photograph or film a person’s private parts under a skirt or down a blouse, without their permission.

In NSW it is also illegal to create, or possess images or videos of children who appear to be the victims of torture, cruelty or physical abuse or engaging in sexual activity or send these images or videos to others. In NSW, a child is considered anyone under the age of 16.

It is also a crime to use the internet to record someone or share images or videos of that person without their permission if the material shared would be regarded as harassing or offensive.

Other offences

a)Unauthorised recording using a surveillance device

In NSW, it is against the law to use a device to record or monitor the private conversation of another without their permission.However, it is legal to record a private conversation if:

All of the parties to the conversation give their permission to the conversation being recorded; or

If one party (for example the person recording the conversation) agrees to the recording and:

The recording is for the protection of a lawful interest; or

If one party agrees to the recording and the recording is not made to be shared with anyone who was not a party to the conversation.

In NSW it is illegal to publish a conversation that has been secretly recorded with a listening device or send the recording to another person. It is also an offence to have a recording of a conversation obtained illegally in your possession.

b)Companies using your private information and data

Organisations such as national Government agencies, large businesses, health service provider and a credit reporting agencies have specific obligations when dealing with your personal information.

Personal information that is protected by the law includes information about you such as your name, signature, address, telephone number, date of birth, medical records and bank account details.

Legally, before such organisations can collect and store your personal information, they must have a clear privacy policy, they must offer you an option of not identifying yourself if you choose not to (except in some limited circumstances) and they must only collect information that is necessary for them to provide their services, or directly related to one of their services.

Further to that, sensitive information can generally only be collected from you with your permission. Sensitive information includes information about your race, political opinions, membership to a political organisation, religious beliefs, sexual orientation, criminal records and information about your membership to a trade union or trade association.

The above organisations are also required to provide you with information about the way in which they use your personal information. This includes the why they collect your information, to whom they disclose your information, details about how you can see what personal information is held hold and details about their complaints process if you think any of the above principles have not been followed.

Organisations are generally not allowed to use your personal details for any purpose other than exact purpose for which it was collected. So, if an organisation such as your internet service provider collects your phone number for the purpose of contacting you about their service, they would not be allowed to use your number for any other purpose. Organisations are also not allowed to use your contact details to send you marketing material unless you have given your permission.

Organisations must also try to ensure that the information they hold is accurate, that it is held securely and that any inaccurate information is corrected. Generally, organisations must also give you access to the information that they hold about you if you ask for it.

Steps to take

If you think your privacy personal information has been misused by an Australian Organisation, then you can make a complaint to them. If they do nothing about your complaint, you can complain to the Office of Australian Information Commissioner (OAIC) and they will investigate your complaint. You can find out more information about your privacy rights and how to make a complaint on their website at http://www.oaic.gov.au/individuals